"Mukasey On Waterboarding: ‘I Would Feel That It Was’ Torture ‘If It Were Done To Me’"

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In today’s Senate Judiciary Committee hearing, Sen. Ted Kennedy (D-MA) asked Attorney General Michael Mukasey whether waterboarding is torture. “Would waterboarding be torture if it were done to you?” “I would feel that it was,” said Mukasey. He then continued to dodge the question on whether the procedure is illegal by going on a tangent and citing Cicero. Watch it:

Mukasey has consistently dodged answering whether waterboarding is torture, despite promising to quickly order a “review” of the tactic. In October, while being considered for attorney general, he stated:

If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique.

At that time, Mukasey also admitted that he considered waterboarding to be “repugnant” on a “personal basis,” but again claimed he could not strike a “legal opinion” on the issue.

Like Mukasey, DNI Mike McConnell has also said that he personally considers waterboarding torture: “If I had water draining into my nose, oh God, I just can’t imagine how painful! Whether it’s torture by anybody else’s definition, for me it would be torture.” Despite his personal repulsion to the procedure, McConnell similarly backtracked a few days later, simply stating, “The United States does not engage in torture.”

Perhaps not surprisingly, Vice President Cheney’s former counsel, Shannen Coffin, said that Mukasey’s answers on waterboarding today were “nicely put.”

KENNEDY: In the issue, as you know, on the — waterboarding has become the worldwide symbol for America’s debate over the torture and became the centerpiece of your confirmation hearing, after you refused to take a position, whether it’s lawful. In fact, even though you claim to be opposed to torture, you refuse to say anything whatever on the crucial questions of what constitutes torture and who gets to decide the issue. It’s like saying that you’re opposed to stealing, but not quite sure whether bank robbery would qualify.

So, the courts and military tribunals have consistently agreed that waterboarding is an unlawful act of torture, but you refuse to say so. But then in a letter to the committee sent last night, you once again refused to state the obvious that waterboarding has been, continues to be an unlawful act of torture. Your letter told us that the CIA does not currently use waterboarding but the fact, that fact had already been disclosed. What your letter completely ignored is the fact that the CIA did use waterboarding and no one is being held accountable.

In your letter, you wouldn’t even commit to refuse to bring waterboarding back should the CIA want to do so. You wouldn’t take waterboarding off the table. Your letter also ignored the fact that the CIA continues to use stress positions, sleep deprivation, other techniques that are every bit as abusive as waterboarding, techniques that our own Department of Defense has rejected as illegal, immoral, ineffective, and damaging to America’s global standing and safety of our own servicemen and –women overseas.

So I won’t even bother to ask you whether waterboarding counts as torture under out laws because I know from your letter that we won’t get a straight answer, so let me ask you this: Would waterboarding be torture if it was done to you?

MUKASEY: I would feel that it was. There are numerous — I remember studying Latin in school, and one of the people I studied was Cicero, and Cicero, when he made speeches, would list all of the things he was going to pass over without mentioning, and then he would pass over without mentioning them, and a lot of that is in your question. You say, I am going to pass by this and not ask you about it pass by that and not ask about it.

There are numerous things I would differ with. You say waterboarding is obviously torture, and you use the example of taking something, bank robbery, obviously being stealing. That assumes the answer to the question — which is that waterboarding is in fact torture just the same way bank robbery is in fact stealing. I think there are numerous other things I would argue with.

I simply point out that this is an issue on which people of equal intelligence and equal good faith and equal vehemence have differed, and differed in this chamber, during the debate on the Military Commissions Act, when some people thought it was unnecessary, when some people thought that it obviously barred waterboarding, other people thought it was so broadly worded that it would allow anything, and there were expressions on both sides. I should not go into, because of the office that I have, the detailed way in which the department would apply general language to a particular situation, notably when I’m presented only with a question that tells me only part of what I would be asked to rule on if I were ever asked to rule on it.

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